Apple to Oz court: ‘Our products are lame, really’

Lawyers, it seems, don’t have to clear the things they say to judges with the corporate PR department. So it is that in the Apple vs Samsung hearing in the Federal Court in Sydney yesterday, Apple in effect told the court its iPad is too lame to withstand competition.

If that statement sounds a little strong, here’s what Apple’s lead barrister, Stephen Burley, said: "Once the Galaxy Tab goes to a purchaser who invests and purchases apps on the Galaxy Tab, we have lost them forever in relation to apps and interactivity because they will then be Android people."

Apple, in other words, believes any non-Apple sale represents a customer lost forever – someone buying the Galaxy 10.1 would never see a reason to buy an iPad. That’s a remarkable statement coming from a company that’s estimated to own on the plus side of 75 percent of the Australian tablet market and as much as one-third of the total mobile computing market in this country.

Cupertino may have a point: according to figures released yesterday by IDC, Android devices are surging in Australia and New Zealand. Apple's 75 percent share of shipments in Q2 is a fall from the 83 percent of shipments Cupertino enjoyed in Q1, and IDC is predicting a fall to 70 percent by year-end.

Apple’s concerns underline the reason it’s so keen to forestall competition in the tablet market: its strategy to wrap up the customer in a nice warm Apple-controlled ecosystem slips the instant any customer buys from anybody else.

Local journalists were surprised when Apple’s Richard Lutton, once head honcho of patent lawyering, was called by the judge. They shouldn’t have been: the fact that he was available to be called means that Apple had already notified the court that he would be present and would testify. Exactly what Lutton had to say is largely confidential, with the media and the public excluded from the court for his testimony.

Justice Annabelle Bennett said she hopes to make a judgment about whether or not Sumsung can put the Galaxy 10.1 on sale in Australia next week. Samsung told the court that the ongoing delay has already created a “grey market” in the product, with customers importing devices from overseas rather than wait.

Apple also revealed that it spent much of 2010 in negotiations with Samsung, but these were terminated in February of this year.

According to IT News, Samsung has decided to remove one of the features at issue from devices sold in Australia. “Selective rejection”, a software feature that tries to avoid accidental touches being interpreted as user actions, is a feature that Samsung can “live without”, according to Samsung’s barrister, senior counsel David Catterns.

With two other items already dropped from the case – US patent 2008258177, covering a slider icon; and the “zoom bounce” patent 2009208103 – the key remaining patents at issue cover heuristics and iPad touch-screen manufacturing techniques (patents 2007286532 and 2005246219, respectively).

The two companies return to court Friday afternoon (Australia time). However, a decision or whether and when Samsung is allowed to market the Galaxy 10.1 in Australia is unlikely before next week.

Any further delay is likely to put a spoke in the wheels of Samsung’s Christmas marketing plans. ®